afforded for the protection of trade impulse resulting from a sentimental and fanciful ephemeral puff.''a

The goodwill of a partnership "stands on the same footing in the settlement of partnership affairs as the tangible property; " the name and style under which its business has been conducted is a part of the goodwill. Corporations may acquire goodwill, just as natural persons, and an assignee of the corporate goodwill and business may use the old corporate name, either with or without an incorporation."

That goodwill attaches to the capital stock. "There is no goodwill in a share of stock over and above the goodwill which belongs to the corporation, and if the corporation sells and conveys all that it possesses 'capable of private ownership,' it sells and conveys its. goodwill, and there is nothing left of goodwill or anything else belonging to the stockholders."

Goodwill which is local, and not personal in nature, will pass to the trustee in bankruptcy.8

§ 95. In particular cases.-"As applied to a newspaper, the goodwill usually attaches to its name rather than to the place

"The peculiar right, or rather expectancy, called 'goodwill,' assumes that certain business has been established and carried on at some specific place. It consists in the probability, based upon the habits of men, that the persons who have been accustomed to deal with that business, at that specific place, as well as others will continue to go to such place and deal in the future." Pomeroy, Eq. Juris. § 1355; adopted by Stewart, J., in Kaufmann v. Kaufmann, 239 Pa. 42; 86 Atl. Rep. 634. For other definitions, see Millspaugh Laundry v. First Nat. Bank, 120 Ia. 1; 94 N. W. Rep. 262; Kennebec Water Dist. v. Waterville, 97 Me. 185; 54 Atl. Rep. 6; 60 L. R. A. 856; Didlake v. Roden Grocery Co., 160 Ala. 484; 49 So. Rep. 384; Bloom v. Home Ins. Agency, 91 Ark. 367; 121 S. W. Rep. 293; Brown v. Benzinger, 118 Md. 29; 84 Atl. Rep. 79; Haugen v. Sundseth, 106 Minn. 129; 118 N. W. Rep. 666; See v. Heppenheimer, 69 N. J. Eq. 36; 61 Atl. Rep. 843; White v. Trowbridge, 216 Pa. 11; 64 Atl. Rep. 862; Dare v. Foy, 180 Ia. 1156; 164 N. W. Rep. 179.

3a-Citing this book, in Eisenstadt Mfg. Co. v. J. M. Fisher Co., 241 Fed. Rep. 241, 244 (C. C. A. 1). 4-Iman v. Inkster, 90 Neb. 704; 134 N. W. Rep. 265.

5-James Van Dyk Co. v. F. V. Reilly Co., 130 N. Y. S. 755; 73 Misc. Rep. 87. Upon the death of a partner the survivor may force a sale of the goodwill and business, and bring about a division of the proceeds. Slater v. Slater, 175 N. Y. 143; Barney v. Leeds, 54 N. H. 128; Ennis v. Hutchinson, 30 N. J. Eq. 110; Barclay v. Barclay, 172 App. Div. 548, 559. Otherwise there may be two firms to use the same firm name, goodwill and trademarks, with resultant confusion. Lepow v. Kottler, 115 App. Div. 231; Barclay v. Barclay, 172 App. Div. 548, 559.

6-United States L. & H. Co. v. United States L. & H. Co., 181 Fed. Rep. 182, 184.

7-Mr. Justice Brewer, in San Francisco Natl. Bank v. Dodge, 197 U. S. 70, 93; 49 L. Ed. 669.

8-Loveland, Bankruptcy, § 390. S. F. Myers Co. v. Tuttle, 183 Fed. Rep. 235, 236; Sawilowsky V.

of publication. The probability of the title continuing to attract custom in the way of circulation and advertising patronage, gives a value which may be protected and dispose·1 of and constitutes property."

Goodwill is an appurtenant of every form of business which relies directly upon public favor. "But the terms goodwill and business are not synonymous. Goodwill, like a trademark, is but an incident to, and can have no existence apart from, the business in which it had its origin. We find in the books cases in which the existence of a valuable goodwill is found as appurtenant to a wide range of mercantile pursuits; as, for example, in the business of flour and grain merchants,11 the manufacture of patent medicines, 12 and of ferro plates and picture frames,13 the business of a stage-line,11 a livery-stable,15 a milk-route,16 a drinking saloon, or where the owners of the goodwill were bankers, bakers, glassstainers,20 haberdashers,21 glass-blowers, 22 brewers, 23 hardware dealers, 24 dealers, 24 tailors, 25 cheesemongers,20 provision provision merchants,27 manufacturing chemists,28 real estate and fire insurance agents, 29 commission agents, 30 mercers,31 paper-makBrown, 288 Fed. Rep. 533, 535 (C. C. A. 5).

9-Metropolitan Bank V. St. Louis Dispatch Co., 149 U. S. 436446; 37 L. Ed. 799; affirming s. c., 36 Fed. Rep. 722. To the same effect see Porter v. Gorman, 65 Ga. 11; Dayton v. Wilkes, 17 How. Pr. 510. The goodwill and name of a newspaper may attach to the printing plant, so as to be vested in the lessee of the plant. Lane v. Smythe, 46 N. J. Eq. 443,454.

10-Van Orsdel, J., in Mayer Fertilizer & Junk Co. v. VirginiaCarolina Chem. Co., 35 App. D. C. 425; 156 O. G. 539.

11-Menendez v. Holt, 128 U. S. 514-522; 32 L. Ed. 526.

18

19

17-Howard v. Taylor, 90 Ala.

241.

34

ers, 32 pencil-makers, 33 hotel or public-house keepers, whiskey merchants,35 dyers,36 dealers in works of art and artists' materials,37 dealers in boots and shoes,38 tobacco brokers,39 hide dealers, 40 snuff makers, 41 upholsterers, 42 iron masters, 43 dealers in seeds, grain and plants, carriers, 45 milliners;46 and

as we will see elsewhere, physicians, solicitors and attorneys may have a vendible goodwill.

It is patent that a goodwill may be created in connection with any business, enterprise, occupation or profession. The older cases expressly denied the existence of a goodwill which could be the subject of sale, in connection with the learned professions. Thus, Lord Chancellor Chelmsford, as recently as 1858, said: "The term goodwill seems wholly inapplicable to the business of a solicitor, which has no local existence, but is entirely personal, depending upon the trust and confidence which persons may repose in his integrity and ability to conduct their legal affairs.'' 47

That there is good reasoning in this dictum can not be denied. Ir a case of later date, in Scotland, it was said: "There is truly no such thing as goodwill in the case of a business carried on by a professional man, such as a physician, surgeon, or law agent, whose success depends entirely upon his own personal skill. It is quite different in the case of a trade or manufacture, where the employer may have the possession of patents or trade secrets, or may, by long exercise of his trade or manufacture in some particular locality, have drawn

32-Potter v. Commissioners of Inland Revenue, 10 Ex. 147.

33-Banks v. Gibson, 34 Beavan,

566.

34-Spratt v. Jeffery, 10 B. & C. 249; Lashus V. Chamberlain, 6 Utah, 385; Elliott's Appeal, 60 Pa. St. 161; Musselman & Clarkson's Appeal, 62 Pa. St. 81.

35-Kidd v. Johnson, 100 U. S. 617; 25 L. Ed. 769.

36-Bryson v. Whitehead, 1 S. & S. 74.

37-Knoedler v. Boussod, 47 Fed. Rep. 465; Knoedler v. Glaenzer, 55 Fed. Rep. 895.

38 Curtis v. Gokey, 68 N. Y. 300.

39-Davies v. Hodgson, 25 Beavan, 177.

43-Hall v. Barrows, 4 DeG. J. & S. 150.

44-Iowa Seed Co. v. Dorr, 70 Ia. 481.

45-Cruttwell v. Lye, 17 Ves. 335. 46-Shackle v. Baker, 14 Ves. 468. 47-Austen v. Boys, 2 DeGex & Jones, 626-636. And to the same effect see Sheldon v. Houghton, 5 Blatchf. 285, 291, Fed. Case No. 12,748; Craver v. Acme Harvester Co., 209 Ill. 483; 70 N. E. Rep. 1047, affirming Acme Harvester Co. v. Craver, 110 Ill. App. 413.

together skilled artisans and attracted the custom of a district to his establishment. In such a case it is not the individual skill of the employer, but the reputation which his establishment has acquired, which creates that incorporeal, but frequently valuable, estate known as the 'goodwill' of a trade But there is no such thing in the case of a professional man. His business dies with him, and the man who comes after him in the district must depend for success upon his own exertions. It is quite true that such businesses are occasionally sold; but what is thus sold in case of a living professional man retiring from business is truly the personal recommendation which the seller gives to his former clients or patients in favor of his successor, coupled with the predecessor's own retirement from business. But where the physician or law agent is dead, nothing of the kind can take place. He has been removed by death from all possibility of competing with the new doctor or the new solicitor, and his voice being forever silenced, he can not give any recommendation to his clients or patients." 48

While the courts have, for the reasons stated, looked with disfavor upon executory contracts for the sale of the goodwill of a professional man's practice, and have refused to decree.

48-Lord Curriehill in Bain v. Munro, 15 Scot. L. Rep. 260. It has been held that the goodwill of an attorney was not a subject of administration. Spice v. James, Seb. 46; Arundell v. Bell, 52 L. J. Ch. 537.

In an early case, however, it was held that a contract entered into by a practicing attorney to relinquish practice, recommend his clients to his successor, that he would not practice within certain limits, and would permit the use of his name in the first name of his successor for a certain period, was good in law. (1803) Bunn v. Guy, 4 East, 190. And in a similar case, where a solicitor sold his practice and agreed not to practice in Great

Britain for twenty years, Lord Langdale held the contract valid and binding on the vendor, and he was enjoined from attempting to resume his practice in Great Britain during the specified time. (1841) Whittaker v. Howe, 3 Beavan, 383.

But the courts have refused to decree specific performance of a contract for the sale of an attorney's practice. Bozon v. Farlow, 1 Mer. 459; Seb. 22; Thornbury v. Bevill, 1 Y. & C. Ch. 554; 6 Jur. 407; Seb. 71.

And where a member of a firm of surgeons died, it was held that the survivor could not be obliged to sell the goodwill of the practice for the joint benefit of himself and his deceased partner's

specific performance under such contracts, still when the sale is complete and the contract partly executed, its terms will be enforced.50 Thus where a solicitor retired, permitting his partner to continue the use of the firm name, in consideration of an annuity to be paid him, and the continuing partner defaulted in the payment of the annuity, the contract was specifically enforced.51

In the United States there have been frequent instances of the sale of the goodwill of a medical practitioner, and contracts for such sales have been uniformly held good.52

There may be goodwill attaching to a remedy and a method of treatment in which it is employed.53

§ 96. As a subject of sale. "The goodwill of a trade is a subject of value and price. It may be sold, bequeathed, or

estate, Vice-Chancellor Leach remarking that "such partnerships are very different from commercial partnerships." Farr v. Pearce, 3 Madd. 74.

49-See last note.

50-Hanna v. Andrews, 50 Ia. 462; Smalley v. Greene, 52 Ia. 241. 51--Aubin v. Holt, 2 K. & J. 66. 52-Webster V. Williams, 62 Ark. 101; 34 S. W. Rep. 537; Bradbury v. Barden, 35 Conn. 577; Martin v. Murphy, 129 Ind. 464; Pickett v. Green, 120 Ind. 584; Hoyt v. Holly, 39 Conn. 326; Gilman v. Dwight, 13 Gray, 356; Dwight v. Hamilton, 113 Mass. 175; Warfield v. Booth, 33 Md. 63; Miller v. Keeler, 9 Pa. Co. Ct. R. 274; Butler v. Burleson, 16 Vt. 176; Tichenor v. Newman, 186 Ill. 264; 57 N. E. Rep. 826.

But, to the contrary, see Mandeville v. Harman, 42 N. J. Eq. 185. In this case the covenant was as follows: "In consideration of this contract, made with him by the said Mandeville, the said Harman hereby covenants and agrees not

to engage in the practice of medicine or surgery in the city of Newark at any time hereafter." The court held that the law was unsettled as LO whether such a contract was or was not void as in restraint of trade, and therefore denied the preliminary injunction scught for.

"In the practice of dentistry, the personal qualities of integrity, professional skill and ability attach to and follow the person, not the place." Braley, J., in Foss v. Roby, 191 Mass. 292, 297; 81 N. E. Rep. 199; 10 L. R. A. (N.S.) 1200. To the same effect see Hutchinson v. Nay, 187 Mass. 262; 72 N. E. Rep. 974; 68 L. R. A. 186; Moore v. Rawson, 199 Mass. 494; 85 N. E. Rep. 586; Wightman v. Wightman (Mass.), 111 N. E. Rep. 881.

As to the sale by a physician of his interest in the goodwill of his firm, see Mills v. Ressler, 87 Kan. 549; 125 Pac. Rep. 58.

53-Pope-Turnbo v. Bedford, 147 Mo. App. 692; 127 S. W. Rep. 426.